FAQ

“Frequently Asked Questions”

Law Offices of Richard C. McConathy FAQ

Frequently Asked Questions

If you’re looking for an aggressive all criminal defense law firm that services all of North Texas, with a group of attorneys having 75 years of combined experience in the local courts with over ten thousand privately retained cases handled, then we are the right firm for you!

We are a full time 100% focused criminal defense firm that handles all types of criminal charges. Our offices has experience in handling every type of misdemeanor or felony charge. It is a rarity if we have not handled that type of charge. 

Our firm is a family business. My grandfather started this firm in 1946. My father started in the firm in 1976. I started in the firm in 2002. I have been the managing member of the firm since 2008. Someday my son’s will follow in my footsteps. You can trust in the stability and earned reputation of this firm today and into the future. When the name Law Offices of Richard C. McConathy is put on your case file at the court house, we take pride in that statement. 

A top flight defense team with unmatched legal experience. We are not a lone ranger type of lawyer with limited resources. Your case will be handled by attorneys with decades of criminal law knowledge and top tier level of paralegals that have been with the firm for over 18 years. Nothing will get by our multiple set of eyes watching your case. Pound for pound, you’ll find it hard to find a firm that can match our capabilities in criminal law!

To be an active member in that part of your defense. 

Public Intoxication

Frequently Asked Questions

Depends on the facts. Public intoxication only requires that the officer in his lay persons opinion that you are intoxicated and a danger to yourself and others. The danger that you face could be real or a possibility. This is a very low bar for the officer to claim under a standard of probable cause, making PI arrests very easy to make. The question of whether the case can be proved in court is another matter, but dismissal prior to trial for lack of probable cause is unlikely.

No, a plead of guilty that results in a finial conviction will result in a conviction on your record that cannot be removed at a later date.

Unless you file for a petition for expungement and have it granted; your public intoxication case will remain on your record. Even through your case was dismissed, a paper trial of proceeding is in the system and can still be pulled up through a background search. Only a granted expungement will erase your record.

Depends on the situation. Miranda rights only apply to verbal communications with the police in response to a custodial interrogation issue. The police asking basic identification questions or safety question is not interrogation. You just talking out loud is not protected. Even if there is a violation, such violation my only remove the use of the statements made in court and not the physical evidence collected.

Only if you case ends with a non-conviction. If your case ended in a non-conviction,then you may petition a court to expunge your record.

Drug Crimes FAQ

Frequently Asked Questions

Texas Penal Code § 1.07(39) defines possession as “actual care, custody, control, or management.” In most cases, possession is considered either actual or constructive.

Actual possession involves drugs being found on the person of an alleged offender, whether the drugs are in their hands, pockets, or a purse or backpack. Constructive possession involves drugs being found in a place in which multiple people had access. A person can be charged with a drug crime based on constructive possession when authorities believe the alleged offender was the person who was the owner of the drugs involved.

Drug Penalty Groups are established in the Texas Controlled Substances Act to classify certain groups of drugs. The Drug Penalty Groups include Penalty Group 1 under Texas Health and Safety Code § 481.112 which includes oxycodone, methamphetamine, heroin, hydrocodone, cocaine, gamma-hydroxybutyric acid (GHB), and other opiates, Penalty Group 1-A under Texas Health and Safety Code § 481.1121 which includes Lysergic Acid Diethylamide (LSD) and its salts, isomers, and salts of isomers, and other compounds, Penalty Group 2 or 2-A under Texas Health and Safety Code § 481.113 which includes amphetamine, 3,4-methylenedioxy-methamphetamine (MDMA, Ecstasy, or Molly), psilocybin (magic mushrooms), methaqualone, and other hallucinogens, and Penalty Group 3 or 4 under Texas Health and Safety Code § 481.114 which includes halazepam, zolpidem, ketazolam, alprazolam, lorazepam, tetrazepam, flurazepam, clonazepam, lysergic acid including its salts, isomers, and salts of isomers, secobarbital, fludiazepam, clorazepate, medazepam, diazepam, and pentobarbital.

The Texas Tribune reported in June 2015 that Governor Greg Abbott signed the Texas Compassionate Use Act, also known as Senate Bill 339, legalizing low-THC cannabis oils as treatment for certain medical conditions. “I remain convinced that Texas should not legalize marijuana, nor should Texas open the door for conventional marijuana to be used for medicinal purposes,” Abbott said before the signing, according to the Tribune. “As governor, I will not allow it; SB 339 does not open the door to marijuana in Texas.” The Texas Tribune also reported in July 2019 that prosecutors across Texas had dropped hundreds of low-level marijuana charges and indicated they would not pursue new ones without further testing because of a new law that legalized hemp and hemp-derived products, like CBD oil. An unintended consequence of the hemp law is it effectively decriminalized marijuana because many state agencies do not have the testing needed to distinguish legal hemp from illegal marijuana.

Your employer has the ability to review your criminal record and you could indeed face possible job loss if the employer deems a drug conviction to be a fireable offense. Not all employers necessarily learn about drug charges, however. You can often give yourself the greatest employment protection by fighting your criminal charges to achieve a resolution other than a conviction that will not cause as many problems.

Drug crime convictions will appear on criminal records and can impact far more than just your job status. When you are applying for an apartment or housing, the landlord could very well use your drug conviction against you and make it the basis for a denial. Similarly, people who are applying for professional licensing can also face similar struggles in gaining approval because of drug convictions. Students at colleges can also face discipline from their institutions for certain drug crimes.

Yes. The Texas Department of Public Safety (DPS) states that if you are convicted of a drug crime, your driver license will be suspended for 180 days, You could also be required to complete a 15-hour class in an authorized Drug Education Program, pay a $100 Reinstatement fee in addition to any other outstanding fees owed, and obtain a Financial Responsibility Insurance Certificate (SR-22) from an authorized insurance company that must be maintained for two years from the date of conviction. If you did not have a driver’s license at the time of a drug crime, you could be denied the issuance of a driver license for 180 days.

Police officers typically must have a warrant to search you or your property. When it comes to a traffic stop, an officer only needs to have probable cause to search your vehicle. In many cases, the alleged odor of marijuana is frequently cited as the basis for a motor vehicle search. You always have the right to clearly state that you do not consent to any search. When you do not consent to a search and police find drugs in your vehicle, an attorney may be able to claim that the search violated your Fourth Amendment rights and seek to have the criminal charges dismissed.

Absolutely. While DWI is commonly associated with alcohol, a person can be arrested for being intoxicated by drugs as well. Keep in mind that intoxicated is defined by Texas Penal Code § 49.01(2) as meaning having an alcohol concentration of 0.08 or more but also “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body.” When a police officer suspects a driver is under the influence of drugs, a “drug recognition expert” will usually be summoned to complete a series of tests to determine if an alleged offender is impaired by drugs. Drug recognition experts typically follow the same 12-step process, which is a breath alcohol test, an interview of the arresting officer, a preliminary examination and first pulse, an eye examination, divided attention psychophysical tests, vital signs and second pulse, dark room examinations, an examination for muscle tone, a check for injection sites and third pulse, the subject’s statements and other observations, an analysis and opinions of the evaluator, and a toxicological examination. This process is clearly flawed since the interview of the arresting officer is the second step in the process and the subsequent tests often serve to act as more of a confirmation bias.

Possibly. Expungement (or expunction) is only available to people who were acquitted of the crimes for which they were charged, were convicted but subsequently found to be innocent, were convicted but were subsequently pardoned, were charged but the case was later dismissed and the statute of limitations has expired, or were arrested but not formally charged. Drug crimes are not included in the possible offenses that prohibit orders of nondisclosure to seal records, so it may be possible to seal a criminal record with a drug conviction.

Theft Offenses FAQ

Frequently Asked Questions

Theft charges, regardless of the amount, if convicted, could have long term damage to your ability to do business, rent property, or obtain certain licenses for work. Any charge that is considered a crime of moral turpitude can potentially affect you negatively for up to ten years.

 

Yes, the victims of a theft case can seek recovery of losses by means of a civil lawsuit in court regardless of if you are being criminally prosecuted. However, they cannot threaten criminal prosecution to litigate a civil dispute.  

Depends, the law allows for the government to charge other individuals as coconspirators to the crime if they in some degree participated with the planning, act or after the fact activities of the crime. If you helped your friend in any way or failed to walk away after discovering the act you may be putting yourself in danger of being charged with the same crime your friend is.

No, regardless of if you pay back the person or party stolen from, this does not prohibit the government from bring charges against you. If you have not been charged yet, it is very important that you seek legal counsel to speak on your behalf with the other side. What you say can be used against you.

Aggravated Assault with a Deadly Weapon FAQ

Frequently Asked Questions

Yes, if the weapon in question can cause death or serious bodily injury it can be used to charge you as a felon. This can include Baseball bats, scissors, pellet guns, rocks, cars, heavy furniture or equipment. Do not assume that if it a non-lethal every day item used in an assault; it cannot be considered a felony.

Yes, if the weapon was used for the intent to cause fear of imminent death or bodily injury in the victims mind, then this is enough to allow the government to proceed with a felony charge against you.

Self-defense is an affirmative defense to the charge against you. Once presented it is the State’s job to disprove you claim as an excuse to the criminal charge. The State can do so by showing your response to a danger was excessive. For example, you were slapped in the face and then hit them over the head with a baseball bat, the state would argue your reaction was excessive.

Depends on the situation. Miranda rights only apply to verbal communications with the police in response to a custodial interrogation issue. The police asking basic identification questions or safety question is not interrogation. You just talking out loud is not protected. Even if there is a violation, such violation my only remove the use of the statements made in court and not the physical evidence collected.

Felony Sexual Assault FAQ

Frequently Asked Questions

No, the investigating officer is most likely a very skilled interrogator and could trap you in argument. Nor should you agree to any DNA testing without a warrant being presented to you. At this point you need to contract a lawyer to help you.

Depending on the outcome of your case, Yes. Based on your charge, you could have to register as a sex offender for life or if a lower category of sex offense as long as ten years.

In certain situations, the court can order bond conditions that can limit your ability to be around children, including your own children without some type of supervision. This can go as far as requiring that you not be allowed to reside at any location children are staying. These restrictions can remain even after the case is finished if you are required to register as a sex offender or as a condition of any probation you receive.

 Polygraph exams have never been proven to the courts to be reliable. As such, the District Attorney can give little to no value in deciding to prosecute your case if they see they have other sources of evidence to convict you.

Family Violence Assault FAQ

Frequently Asked Questions

Unfortunately, the law allows the government to continue with prosecution of a family violence case even after the victim states they want to drop the charges. This is because the law creates a situation in which the government can step in for the victim to ensure that the victim is not being pressured to drop the case.

Unfortunately, the law allows the government to continue with prosecution of a family violence case even after the victim states they want to drop the charges by filing an affidavit of non-prosecution. This is because the law creates a situation in which the government can step in for the victim to ensure that the victim is not being pressured to drop the case.

Probably not, if your plead to a charge family violence assault with an affirmative finding of family violence then you cannot be granted a petition to seal your record since your record is now in the federal firearms database system and not subject to state orders. Only cases plead to non-convictions with no finding of affirmative family violence can be sealed.

issed if the State offers some form of an anger management (BIPP) coarse and such course is successfully completed. Or if the victim refuses to participate in the trial and the state has no other form to prove up the charges. However, any attempt to influence the victim to not participate in the trial may be consider witness tampering and obstruction of justice which could result in other charges.

Yes, He said/She said cases are the typical type of case filed in the courts. If the victim makes an outcry of assault and has some evidence of the claim, such as marks on the body, this will be sufficient to get you into court. There is quite a lot more needed to have you convicted and a lack of evidence can result in a not guilty or dismissal at trial.

Firearm / Weapon Offenses (UCW) FAQ

Frequently Asked Questions

Conceal carry permits only allow you to possess a weapon in the furtherance of lawful activity. If you are charged with another offense, such a possession of marijuana or DWI, and have a weapon on you. You will be charged with an Unlawful carrying of a weapon (UCW) regardless of if you have a permit to carry.

 Yes, it is the duty of the real property owner to seek the weapon back from the government after the case.

Depends, any conviction of a weapon related offense may have long term ramifications on the ability to purchase a firearm under state and federal law.

Juvenile Crime FAQ

Frequently Asked Questions

My child was spoken to by the police on a juvenile crime without myself being there, is that legal?

Juvenile prosecution is much different than adult prosecution. The court must determine what is in the best interest of the child before releasing back into your custody. This may require a mental evaluation on the child and a social study on the home and your parenting style before considering release. This can take anywhere from 10 days to 3 months.

Yes, depending on the nature of the crime, a court upon recommendation of the juvenile division can require your child to stay in another location with a supervising relative. This requirement can be expanded after the case is finished if the child is placed on probation.  This is common in cases involving sexual assault.

 If you want your child returned to your home, your presence at all hearings is essential.

Criminal Expungement and non-disclosure Process FAQ

Frequently Asked Questions FAQ

 No, anything resulting in a finial conviction cannot be expunge.

n or with higher crimes you may have a cooling off period after being released from probation anywhere from 2-5 years for said release date.

Unless the dismissal is with prejudice, no petition for expungement will be accepted until the statue of limitations has run on your charge. The range of wait time can be anywhere from 2 years to 5 years from the date of arrest depending on the original charge. Unfortunately, certain criminal charges (murder) have no statute of limitation or extremely long periods (Sexual assault of a child).  

A petition for expungement or non-disclosure is a claim that must be brought by you. Until you file for a request to expunge or non-disclose and it is granted by a judge the case will stay on your record.

Criminal Defense FAQ

Frequently Asked Questions

This depends on several factors: the charge you are facing (Misdemeanor or Felony), your criminal history, the difficulty of your case, the estimated time spent on your case by the Lawyer, The experience, and reputation of your attorney in criminal defense.

1 – Will you personally be handling my case?

2 – How often do you go to trial?

3 – What areas of criminal law are you most experienced with? 

4 – How long have you been handling criminal defense cases? 

5 – What type of fee do you charge? Flat fee or hourly rate?

6 – How much do your services cost for my particular case?

7 – Do you have a contract for services you can provide me after I hire you?

8 – Will you return my calls the same day?

You should request a lawyer immediately if you are being questioned about a crime and you may be the target of the investigation. You should never go and speak to the police yourself if you are a target of an investigation. You should request an attorney if the answers in any way or form may incriminate you. Perhaps just as importantly, you should request a lawyer if you are not sure how to answer any question with the police.

As soon as you have been contracted by law enforcement for an investigation of a crime or after you have been arrested and released.

    1. Your attorney should be responsive to your calls and questions.
    2. Your attorney should focus his principal practice in criminal law (75%)
    3. Your lawyer should be experienced in the local courts of the area and know the politics of the community for at least 10 years.
    4. Your attorney should know the basics of criminal law without having to look up the law.
    5. Your lawyer should provide you with a clear Fee Structure in a written contract you can get a copy of.
    6. Your lawyer should be enthusiastic about criminal law and defending your case.
    7. Your lawyer has courtroom and trial experience of at least 100 jury trials and 1000 plea deals.
    8. Your attorney has a reputation for courtroom confidence.

Marijuana FAQ

Frequently Asked Questions

Yes, marijuana remains illegal in Texas, although a law legalizing hemp in 2019 led to marijuana prosecutions in Texas plummeting by more than half in the six months after the law was enacted. While many police departments lack the equipment needed to determine the tetrahydrocannabinol (THC) content in alleged marijuana to distinguish it from hemp, it remains likely that law enforcement will continue to arrest individuals for alleged marijuana possession offenses.

The possible disciplinary measures of a court in a marijuana case will depend on multiple factors, largely the amount of marijuana that was allegedly possessed. A person’s prior criminal record could also impact penalties in marijuana cases. In general, the most common kinds of penalties are usually fines and imprisonment, but additional penalties could include driver’s license suspensions and other punishments.

 Police officers can arrest individuals who they believe were in knowing possession of marijuana, and possession may be actual or constructive. Actual possession is when marijuana is found on the person of an individual, whether it is in their pocket or their hands. Constructive possession means that a person could be accused of possession when marijuana is found in an area accessible to multiple people.

The record of the arrest could be public and be available to many people who perform background checks. While an arrest is not the same as a conviction, it can still appear on a criminal record and have possible negative complications for employment applications or college-related efforts.

Many marijuana cases are thrown out when police officers violate the rights of alleged offenders in their encounters with them. An unlawful search and seizure is one of the most common defenses against any drug charge because when police seize evidence unlawfully, it is prohibited from being used as evidence by a prosecutor and they are subsequently left without anything to pursue a case with.

 A lawyer is immediately going to be able to conduct their own investigation into the arrest and determine the strongest possible defenses in your case. The attorney will know what kinds of evidence to seek out and how to use certain elements to your advantage. When you have a lawyer, they will also be more comfortable negotiating with a prosecutor to achieve a reduction in or dismissal of criminal charges.

A prosecutor must prove your guilt for any marijuana crime beyond a reasonable doubt, which is an exceptionally high bar to satisfy. You can achieve a not guilty verdict by simply giving a jury enough reason to doubt any element of a prosecutor’s case. An acquittal can be achieved through a dedicated effort to attack every element of the case against you.

Community service is one of the most common kinds of punishments for alleged offenders instead of prison sentences. It is also possible that a person could be sentenced to a term of probation in which they have to check in regularly with a probation officer. Court-ordered participation in a drug treatment program could also be possible in some cases.

Your employment situation will depend on how aggressively your employer enforces drug convictions. Some employers may have no tolerance for these kinds of issues and could terminate you just for an arrest, but other employers may not conduct any kind of background check needed to uncover the violation.

The answer will again depend on the school, as some colleges vigorously enforce their codes of conduct while others are far more lenient. Suspensions and expulsions are possible in some cases.

It may. Landlords run background checks on most prospective tenants in Texas, and a marijuana conviction could indeed be used as a reason to deny a person the opportunity to rent an apartment.

Texas DWI FAQ

Frequently Asked Questions

DWI is a criminal offense that says a person may not drive a motor vehicle in a public place while “intoxicated.” The DWI statute does not say driving while drunk or “drunk driving.”

The legal definition of intoxication in Texas is:

  • Having an alcohol concentration of 0.08 or more
  • Not having the normal use of physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substances into the body.
  • Not having the normal use of mental faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substances into the body

The State only needs to prove one of the three ways beyond a reasonable doubt in order to obtain a conviction.

According to the law, the definition of the word normal is the average person. The problem is how do we determine the average person? The law is vague in this subject, which lends itself for good argument to a jury that everyone is different and each has his own normal.

“Alcohol concentration” is defined by statute as:
a. the number of grams of alcohol per 100 milliliters of blood;
b. the number of grams of alcohol per 210 liters of breath; or
c. the number of grams of alcohol per 67 milliliters of urine.

A 0.02 equals one drink. A drink is 1-¼ ounces of liquor, 1 12oz beer, or 1 glass of wine. It takes one hour for the body to burn off a 0.02 down to a 0.00. Thus, to reach a 0.08 a person must consume four drinks in one hour.

Under criminal law, you are not required to perform any type of test or answer any questions to the police officer. You have the right to refuse any tests and request an attorney. However, if you refuse to attempt these tests, the officer most likely is going to arrest you.

Further, the civil law, which your driver’s license falls under, does not protect you. In fact, when you applied for your driver’s license you unknowingly consented to any future tests, if to which you refused you would lose your driver’s license for a period of six months. The decision is yours and there is a civil risk (your license), but you do have rights, and should not waive them. Always request your lawyer and don’t cooperate with anything if you wish to exercise your rights.

No. However, although a person has no right to refuse being videotaped, he does have the right to refuse to perform any police field sobriety exercises and to refuse to answer any questions, the answers to which, might be incriminating. Unlike breath or blood test refusals, there are no penalties for refusing to perform field sobriety tests or refusing to answer questions while being videotaped.

If performed in a controlled environment in the exact proscribed standardized manner, the tests can be a likely indicator of intoxication. This is hardly done in the street.

The research conducted by the National Highway Traffic Safety Administration, the designers of the tests, concluded the Horizontal Gaze Nystagmus is 77% accurate, the Walk & Turn is 68% accurate, and the One Leg Stand is 65% accurate only when administered in the prescribed, standardized manner. Any change from the standardized manner will compromise the tests validity and make any result inaccurate. When not conducted properly it becomes an opinion test of the officer.

Therefore, these tests will inaccurately claim 23% – 35% of the people tested as intoxicated. Which when done incorrectly, which is the norm, can drop the accuracy to a frightening level.

Even SOBER persons can have difficulty with these tests, as stated by The National Highway Traffic Safety Administration. The reason is as the NHTSA has admitted, are several factors that affect every person, such as:

  • Age
  • Being ill
  • The distraction of traffic
  • The police car’s strobe lights
  • Fatigued
  • Footwear
  • Lack of coordination
  • Gusts of wind
  • Weight
  • Road or sidewalk conditions
  • Allergies
  • Scared
  • Head lights of traffic
  • Weather conditions
  • Being nervousness
  • Back problems
  • Leg or knee problems
  • Inner ear disorders

The State of Texas must prove your guilt “beyond a reasonable doubt”, which is the highest burden of proof in the justice system. It is not defined, by Texas law, but can be easily explained to a jury.

The lowest burden of proof is probable cause. That is how an officer can start an arrest.

The next highest burden of proof is preponderance of the evidence. This is the amount of proof needed in civil courtrooms involving civil suites. A preponderance of the evidence is proof amounting to 51% or who can move the scales of justice.

The next highest burden of proof is clear and convincing evidence. This is amount of proof that will cause a juror or judge to have a “firm belief” in the matter to be proved. This is used in custody cases. Most juries when they hear that the burden of proof is higher than that to take their kids away from them understand the high level of proof.

Beyond a Reasonable Doubt is the highest burden of proof. A jury must have more than that necessary to take your kids away in evidence that you were intoxicated before they could find you guilty. This is very simple, if a juror has a single doubt, based on reason, as to a person being intoxicated, they must follow the law and find them not guilty.

Texas law does not give you the right to speak with an attorney prior to making the decision of whether or not to take the field sobriety tests, the breath test or blood test. However, the law does not require you to perform any field sobriety tests or to take a blood or breath test so continue to ask for an attorney and refuse to cooperate and the likely chances of being found NOT GUILTY can increase!

If you are convicted of the DWI, it will be on your record for life. Furthermore, a DWI conviction can be used for ten years to enhance your punishment of you are arrested for DWI again. If you are found Not Guilty, you can have the arrest and DWI charge “expunged” from your record.